Rick Falkvinge, pirate

Copyright’s shameful origins, part 2 of 2

A while back, I posted the first part of the nasty tale about how copyright came to be – the story about how Queen Mary I ruthlessly hunted down protestants and introduced copyright as a repressive censorship mechanism, where a printers’ guild was granted a monopoly, and in exchange for this, they censored every piece of printed material as a service to the Crown. I concluded the first part with the Glorious Revolution in the year 1688.

This second part will cover the time between 1640 and 1900.

In the mid-17th century, the Parliament tried to gradually seize control over the censorship mechanism from the Crown. One of the actions aimed towards this goal was that the Star Chamber (camera stellata), the court which had decided censorship cases, was dissolved in 1641. This led to a practical explosion of new printing shops, since the censorship was effectively abolished.

However, this was not Parliament’s intention at all – they only wanted to gain control over the censoring themselves. The Star Chamber had been an inquisition-like supreme court for matters too important for the local village courts, and Parliament did not want it to control printing. Instead, in the year 1643 they introduced a Licensing Act which basically reinstated the censoring just as it previously had been, including:

• requirement for a publishing license before any publication
• registration of authors, printers, and publishers at the London Company of Stationers
• search and seizure of private property, particularly burning of unlicensed works and prints
• arrests and severe punishments for unlawful authors, printers and publishers

As before, the London Company of Stationers was appointed to administer the censorship (including the burning of books and confiscation of unlicensed printing presses), in exchange for a complete monopoly.

Now a quick reminder – this is copyright we are talking about. This is what it was all about. This is its origin. Keep that in mind.

In 1662, the censoring was strengthened further with another law, the Licensing of the Press Act.

But then came the Glorious Revolution in 1688, and turned the balance of power completely on end. The composition of Parliament changed, so that those who had previously been victims of censorship and repression became an important element of power. As a result, Parliment simply let the Stationers Company know that their monopoly would be revoked (technically it would not be renewed), and so it came to pass in 1695. This meant the end of a 140-year-long repressive monopoly situation where the monopolists possessed far-reaching rights for censoring and impounding, and it marked the reinstatement of complete Freedom of the Press in Great Britain.

It is worth noting, that from 1695 and fifteen years on, no such thing as copyright existed at all. Culture and knowledge were spread like never before, not only in England, but also in the colonies, including America. Historians agree that the documents and printed works that eventually led to the American War of Independence saw their first light of day during this time. So ironically, the beginning of USA as a nation was catalyzed by the absence of copyright.

During those years, the Stationers’ Company saw their former monopoly in ruins, and their guaranteed source of income had vanished. Suddenly the writers could print books on their own, even if it was performed in the form of an order to a printing shop. Earlier, the monopoly had bought the script and then proceeded to print the work without giving the author another thought. Or not print the work, as could also be (even today).

What the former monopolists did then was to start lobbying Parliament and pointing out a number of negative effects of the Freedom of Press. One of those effects was that the integrity of the work was in danger – it was one thing to print a number of books using previously created printing plates, but it was another thing to create new ones from a paper copy. In the process of creating the plates, one was pratically back to the scribe creating a new original, the copies were seldom perfect. In particular, images were poorly reproduced, as well as mathematical formulas and illustrations, which could be seen in works of Galilei and the like.

The monopolists argued, that because it’s so expensive to create a perfect copy, and so cheap to create a bad one, those who create secondary printing plates would have a strong financial incentive to water down the works, and this was hurting the supply of culture and knowledge for the public.

To remedy this, the monopolists claimed that there should be a natural ownership to something you write, an ownership which would be assigned to the author of a work. An ownership which prohibits others to print the same work. And if it is an ownership, then it could also be bought and sold. (Guess who the monopolists had in mind to buy these rights.) This is the first occasion where the term “intellectual property” appears in history, and the objective of this rhetoric was quite clearly to keep a profitable monopoly, which had been used for repression of culture and knowledge.

The monopolists claimed to speak on behalf of the authors in this matter. The authors themselves, however, did not bring forward any such arguments at all. In this perspective, nothing has changed in three hundred years.

Parliament bought the rhetoric and introduced a limited copyright term, which could be bought and sold, and which was assigned to the author who created a work. The copyright term was 21 years for previously published works, and 14 years for works created after the introduction of the law. This law was called Statute of Anne, and it was written into the law books in 1709, and took effect on April 10, 1710. The Copyright Lobby usually begin their recital of history at this point, and ignore the repression parts. However, the impounding and burning of undesired books continued for three generations more — the practice was not outlawed until Entick v. Carrington 1765.

At this point, it is worth noting two things:

First, copyright was never meant to benefit artists or authors. Depending on one’s level of cynicism, it was either supposed to benefit the public – with the public as the only legitimate stakeholder – or the publishers.

Second, the entire justification of copyright is the that it’s expensive to make perfect copies, but cheap to create copies which are not identical. Today, the exact opposite is true. The copy that is simplest to produce is the exactly identical one – it can be produced at a cost of zero. On the other hand, any changes that need to be made consume time and resources. One might argue that the progress of technology has completely falsified the very core assumption on which the existence of copyright was based.

With time, the ideas spread, and I usually distinguish between four distinct origins of copyright. The Nordic one deals only with recognition of creators, and existed as far back as the Swedish “Västgötalag” in the 13th century. The British, which is the foundation for what we call copyright today, is what has been discussed here and which emerged between 1557 and 1710. The American one was introduced in 1787 with the British one as its foundation, but where it was more clearly expressed that the public is the only legitimate beneficiary: the constitution said that copyright exists “to promote the progress of sciences and useful arts”. Finally, there is the French tradition which emerged roughly at the same time as the American one, and which was pioneered by the writer Victor Hugo. In France, emphasis was more towards the authors’ moral rights. Both the American and the French copyrights are about one century later than the British one.

But the origin of them all – except the Nordic one which only gives recognition – is a horrific repressive censorship institution, formed around a monopoly with harsh punishments and the burning of books, targeted at political dissidents.

This was a post originally written in Swedish and kindly translated into English by blog reader Hans.